Suppose you were the Chief Justice of the Supreme Court. The
President has nominated a justice to the Court who you would like to see
on the court, and potentially close to 100 members of the U.S. Senate
would vote to confirm the nominee under normal circumstances. However,
in today's tactical politics, the Senate Majority Leader refused to hold
hearings on any nomination, sight unseen. That leaves you in the short
term concerned with forging agreement case by case to avoid the
unsatisfying 4-4 split decisions. Suppose you regard the President's
choice as someone who would add value to the discussion and help forge
agreement in difficult cases, so the Senate has left your court hobbled.
Not only that, but you even made a recent speech indicating that the
nomination process "is not functioning very well" and that "We [on the
Court] don't work as Democrats or Republicans", but it is getting harder
and harder to maintain that perception among the general public. Is
there any feeling of being used by that other branch? Sure, Judge
Garland was called a political pawn by some, but isn't the Court being
used as a political pawn. Is there anything a Chief Justice can do?
Well...one
countertactic would be to rule on any case on which the four liberal
justices agree, automatically with those justices to forge a majority of
five so long as the Garland nomination languishes without
consideration. Even signaling that intent could prompt the Senate to
move quickly to consider the nomination. Of course, any of the four
conservative justices could take this approach, but the Chief Justice
bears the greatest responsibility to protect the institution. Obviously,
this is outside of normal judicial temperament and so unlikely, but
when one considers that an 8-justice court split 4-4 could persist for
years, one wonders if the Chief Justice is at all tempted. Sure, the
House could threaten to begin impeachment proceedings, but that is even
more unlikely.
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